The power to regulate does not generally include the power to prohibit.

Samuel Johnson defines "to regulate" as "To adjust by rule or method. . . . To direct." In other words, the term "to regulate" means "to make regular."

The power to regulate is, in essence, the power to say, "if you want to do something, here is how you must do it." For example, the making of contracts and wills are "regulated" by the law of contracts and estates. To make an enforceable agreement for a sale of goods over five hundred dollars requires that the agreement be in writing. To make a will requires a specified number of witnesses to one's signature. These requirements regulate--or "make regular"--the making of contracts and wills by subjecting them to a rule or method.

The power to regulate the making of contracts or wills is not the power to prohibit such activity, even though contracts or wills that do not conform to the regulation are necessarily unenforceable. A pure regulation of commerce, then, is a set of rules that tells people, "If you want to trade or exchange with others, here is how you must go about it."

In contrast, Johnson defines "to prohibit" as "1. To forbid; to interdict by authority. . . . 2. To debar; to hinder."

Forbidding, interdicting, and hindering are not the same thing as regulating, or "making regular," or adjusting by rule or method. It does not tell you how to do something, but instead tells you that you may not do it at all.

And in Johnson's dictionary, neither "to regulate" nor "to prohibit" is defined in terms of the other; each seems quite distinct. Indeed, both terms appear in the Constitution and the context in which they are used suggests that their meanings sharply differ. Apart from the Commerce Clause, the terms "regulate" or "regulation" appear seven other times in the body of the Constitution and three times in the amendments proposed by Congress to the states, though only once in the Bill of Rights as ratified. The term "prohibit" is used once in the body of the Constitution and twice in the Bill of Rights. Article I, Section 4 gives Congress the power to "alter such Regulations" on the time, place, and manner of elections prescribed by state legislatures. Clearly, the power to regulate or facilitate elections is not the power to prohibit them. Article I, Section 8 gives Congress the power "to . . . regulate the Value" of money, not to prohibit the use of money or to "regulate" its value to zero.

In two places the Constitution makes an explicit distinction between prohibition and regulation. Article III, Section 2 gives the Supreme Court appellate jurisdiction, both as to law and fact, "with such Exceptions, and under such Regulations as the Congress shall make." By distinguishing "exceptions" from "regulations," the Constitution distinguished Congress's power to regulate or subject to rule the Court's appellate jurisdiction and its power to prohibit the Court from exercising its jurisdiction by making "exceptions" thereto.

If the power to make regulations included the power to prohibit that which is regulated, there would have been no need to give explicit power to Congress to make "exceptions" to appellate jurisdiction. That the Constitution does not adopt the broader meaning of regulation as "to govern" is also reflected in Article I, Section 8, which gives Congress the power "to make Rules for the Government and Regulation of the land and naval Forces."Here, the term "government" is coupled with "regulation" in a manner that makes clear that Congress has complete power to command or govern the army and navy, not merely the power to regulate them.

Less clear, but still consistent with the distinction between "To regulate" and "to govern," is Congress's power in Article IV, Section 3 "to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Congress clearly has the power to govern the territories, and the term "rules and regulations" suggests strongly that its powers are broader than merely regulatory, though it includes the power to make "regulations" as well as other needful "rules."

That the Constitution uses the term "to regulate" in this sense is made plain by the Second Amendment, the first portion of which reads, "A well-regulated Militia, being necessary to the security of a free State."

A "well-regulated" militia is not a prohibited militia but one that is well drilled. Even those who read the Second Amendment as a "collective" rather than an individual right on the basis of this preface concede--indeed their theory requires them to insist--that the power to regulate the militia that the Constitution elsewhere confers upon Congress does not include the power to forbid or prohibit the militia. By their interpretation, the sole purpose of the Second Amendment was to protect the continued existence of the state militias.

By the same token, the power of Congress to "well-regulate" commerce among the states does not include the power to forbid or prohibit commerce. James Madison described a direct parallel between the regulation of the militia and the regulation of commerce when he asked: How can the trade between the different States be duly regulated without some knowledge of their relative situations in these and other points? . . . How can uniform regulations for the militia be duly provided without a similar knowledge of some internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation and suggest most forcibly the extensive information which the representatives ought to acquire.

How do the debates in the state ratification debates bear out this distinction between the power "to regulate" and the power "to prohibit"?

The term "regulate" appears fifty-five times in all the records we have of the deliberations in the states. In every case where the context makes the meaning clear, the term connotes "subject to a rule" or "make regular" in the sense that "if you want to do something, here is how you should do it." As with the word "commerce," the term "regulate" is used with stunning uniformity--so much so that it would be tedious to reproduce the quotes here. And it is unnecessary because the term appears overwhelmingly in the context of regulatory powers that, as we observed in the intratextual discussion above, could not plausibly have included the power to prohibit such activities. These are references to the powers to regulate elections, jury trials, courts, militias, taxes, treaties, and the deliberations of the Senate In the rest, the term "regulate" is used in its ordinary sense, in some context other than the Constitution of the new government.

There is, however, one now-obsolete passage of the Constitution that argues for a broader original meaning of the term "To regulate." Article I, Section 9, stipulates that the "Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year" 1808.

Forbidding, interdicting, and hindering are not the same thing as regulating, or "making regular," or adjusting by rule or method. It does not tell you how to do something, but instead tells you that you may not do it at all. -- "

How many times must all levels of our governments be told that they do not have the power to prohibit?

For another perspective on the word, we have this excerpt from a 1785 letter from James Madison to James Monroe:

Much indeed is it to be wished, as I conceive, that no regulations of trade, that is to say, no restriction or imposts whatever, were necessary. A perfect freedom is the System which would be my choice. But before such a system will be eligible perhaps for the U. S. they must be out of debt; before it will be attainable, all other nations must concur in it.

Read further.. Sure, he admits we must have overall fed control over commerce but only with State acquiescence:

" --- How is this harmony to be obtained? only by an acquiescence of all the States in the opinion of a reasonable majority. If Congress as they are now constituted, can not be trusted with the power of digesting and enforcing this opinion, let them be otherwise constituted: let their numbers be increased, let them be chosen oftener, and let their period of service be short[e]ned; or if any better medium than Congress can be proposed, by which the wills of the States may be concentered, let it be substituted; -- or lastly let no regulation of trade adopted by Congress be in force untill it shall have been ratified by a certain proportion of the States.

But let us not sacrifice the end to the means: let us not rush on certain ruin in order to avoid a possible danger. I conceive it to be of great importance that the defects of the federal system should be amended, not only because such amendments will make it better answer the purpose for which it was instituted, but because I apprehend danger to its very existence from a continuance of defects which expose a part if not the whole of the empire to severe distress. -- "

So here we have it.. Severe State distress, no harmony, -- because the feds insist that they have the power to prohibit, rather than to reasonably regulate.

Why is that? What drives otherwise reasonable people to prohibitionism?

What is amazing to me is some many "Freepers" when confronted with Prof. Barnett's "presumption of liberty," recoil in fear of liberty. The most famous person of all who recoils in such fear is Rush Limbaugh.

Limbaugh is an intellectual featherweight who is gradually learning [from his own problems] that prohibitionism is a political disease of both left & right. -- One that could bring down this Republic if it spreads.

"Yet it is very certain that it [the power to regulate commerce among the several States] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government"

--James Madison

11
posted on 06/09/2005 12:45:20 PM PDT
by Drammach
(Freedom; not just a job, it's an adventure..)

Madison wrote two letters in which he explained the intent of the Commerce Clause. He also explained the difference between the power to regulate commerce with foreign nations, and the power to regulate commerce among the the several States.

Due to its length, I excerpted from his explanation of the power to regulate trade with foreign countries. The entire document can be read here:

1. The meaning of the Phrase "to regulate trade" must be sought in the general use of it, in other words in the objects to which the power was generally understood to be applicable, when the Phrase was inserted in the Constn.

2. The power has been understood and used by all commercial & manufacturing Nations as embracing the object of encouraging manufactures. It is believed that not a single exception can be named. [end of excerpt]

Now on to the States:

James Madison to Joseph C. Cabell

13 Feb. 1829 Letters 4:14--15

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

"...only by an acquiescence of all the States in the opinion of a reasonable majority.

The context of his statement is that the states should obey the orders of this "reasonable majority". The problem that existed at the time was that each state was setting its own trade policy, and that diminished the effectiveness of any trade policy. He wanted there to be a national policy, that all the states would be bound to go along with. He was not saying that it should require a unanimous vote of the states in order to adopt such a policy.

Read further.. Sure, he admits we must have overall fed control over commerce, but only with State acquiescence:

" --- How is this harmony to be obtained? only by an acquiescence of all the States in the opinion of a reasonable majority. -- -- or lastly let no regulation of trade adopted by Congress be in force untill it shall have been ratified by a certain proportion of the States. -- "

The context of his statement is that the states should obey the orders of this "reasonable majority".

Read further.. Its obvious he wants States to have a say in commerce 'regulation'. - And doesn't believe that the commerce clause allows Congress to issue prohibitory 'Acts'.

The problem that existed at the time was that each state was setting its own trade policy, and that diminished the effectiveness of any trade policy. He wanted there to be a national policy, that all the states would be bound to go along with. He was not saying that it should require a unanimous vote of the states in order to adopt such a policy.

Amendments require a three fourths majority.

Why is it you want to believe a majority can issue prohibitions on objects using the guise of the commerce clause?

I haven't said otherwise. He just isn't saying that consent needs to be unanimous among the states.

And doesn't believe that the commerce clause allows Congress to issue prohibitory 'Acts'.

Where does he say this?

Amendments require a three fourths majority.

Actually under the Articles of Confederation (which was in effect at the time of the letter) unanimity was required to make an amendment, but once the amendment would have been approved, it would not have required unanimity to pass a regulation of commerce.

Read further.. Sure, he admits we must have overall fed control over commerce, but only with State acquiescence:

" --- How is this harmony to be obtained? only by an acquiescence of all the States in the opinion of a reasonable majority. -- -- or lastly let no regulation of trade adopted by Congress be in force untill it shall have been ratified by a certain proportion of the States. -- "

The context of his statement is that the states should obey the orders of this "reasonable majority".

Read further.. Its obvious he wants States to have a say in commerce 'regulation'. - And doesn't believe that [a] commerce clause [should] allow Congress to issue prohibitory 'Acts'.

Where does he say this?

It's the thrust of his general argument. You don't agree with that argument, so you're nitpicking the issue, as usual.

The problem that existed at the time was that each state was setting its own trade policy, and that diminished the effectiveness of any trade policy. He wanted there to be a national policy, that all the states would be bound to go along with. He was not saying that it should require a unanimous vote of the states in order to adopt such a policy.

Amendments require a three fourths majority.

Actually under the Articles of Confederation (which was in effect at the time of the letter) unanimity was required to make an amendment, but once the amendment would have been approved, it would not have required unanimity to pass a regulation of commerce.

While interesting, your comment is in effect just more nitpicking in order to avoid the real issue:

Why is it you want to believe a majority can issue prohibitions on objects using the guise of the commerce clause?

--- we have this excerpt from a 1785 letter from James Madison to James Monroe: Much indeed is it to be wished, as I conceive, that no regulations of trade, that is to say, no restriction or imposts whatever, were necessary. A perfect freedom is the System which would be my choice. But before such a system will be eligible perhaps for the U. S. they must be out of debt; before it will be attainable, all other nations must concur in it. 3 posted on 06/09/2005 10:07:25 AM PDT by inquest

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